IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) Case No: 7595/2017 In the matter between: MINERAL SANDS RESOURCES (PTY) LTD First Plaintiff ZAMILE QUNYA Second Plaintiff and CHRISTINE REDDELL First Defendant TRACEY DAVIES Second Defendant DAVINE CLOETE Third Defendant Case No: 14658/2016 In the matter between: MINERAL COMMODITIES LIMITED First Plaintiff MARK VICTOR CARUSO Second Plaintiff and MZAMO DLAMINI First Defendant CORMAC CULLINAN Second Defendant Case No: 12543/2016 2 In the matter between: MINERAL COMMODITIES LIMITED First Plaintiff MARK VICTOR CARUSO Second Plaintiff and JOHN GERARD INGRAM CLARKE Defendant Coram: Goliath DJP Judgment delivered Delivered electronically: 09 February 2021 JUDGMENT GOLIATH DJP “Like a pebble thrown in water a single SLAPP1 can have effects far beyond its initial impact” Penelope Canan, The SLAPP from a Sociological Perspective, 1989. Introduction [1] This matter involves exceptions to two special pleas which introduce a novel Strategic Litigation Against Public Participation (SLAPP) defence. Redell, Davies and Cullinan are environmental attorneys. Cloete, Dlamini and Clarke are community activists. In the first set of special pleas the defendants allege that they had been SLAPPed in the context of environmental activism. Two related mining companies 1 SLAPP is an acronym for “Strategic Lawsuits Against Public Participation” and was created by Professors Penelope Canan and George W. Pring of the University of Denver, who have written widely on this topic. See, e.g., George W. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 PACE ENVTL. L. REV. 3 (1989); Penelope Canan, The SLAPP from a Sociological Perspective, 7 PACE ENVTL. L. REV. 23 (1989); Penelope Canan and George W. Pring, Studying Strategic Lawsuits Against Public Participation: Mixing Quantitative and Qualitative Approaches, 22 LAW & SOC’Y REV. 385 (1988); Penelope Canan and George W. Pring , Strategic Lawsuits Against Public Participation, 35 SOC. PROBS. 506 (1988). 3 and their directors, are suing three environmental attorneys as well as three community activists for defamation, and damages in the in the sum of R14,25 million, alternatively the publication of apologies. The two mining companies are involved in the exploration and development of major mineral sands projects in South Africa, and are referred to as the Tormin Mineral Sands Project and the Xolobeni Mineral Sands Project. Second plaintiffs are in the employ of the mining companies inter alia as director and executive chairman. The main issue to be determined in this matter are two substantially identical special pleas raised by the defendants in each of the three separate actions. The respective mining companies in each of these three actions are the excipients to the two special pleas. The Three Actions [2] In the Clarke matter it is alleged that Clarke published two defamatory e- books, one during 2014 entitled “The Promise of Justice” and another in 2015 entitled “Survivor: Wild Coast - Before and Beyond the Shore Break” which is available worldwide. The record reflects that he was actively engaged in criticising the plaintiffs’ mining and excavating activities, and its environmental, ecological and economic impact on the development potential of the Wild Coast. In and during 2016 he participated in radio interviews, posted video clips on YouTube, written numerous emails, and had a number of interviews published on various social media platforms online. He also participated in a panel discussion on a television programme 50/50 relating to mining and mineral regulation issues, engaged the Minister of Mineral Resources, posted an article in an online journalism platform called “Medium”, entitled “Behind the irony curtain: Blood Diamond, Xolobeni and the real story of MRC”, and created general awareness around his environmental activism. 4 Summons was issued against him on 18 July 2016. However, he continued with his advocacy work which resulted in further claims and amendments to the summons. The plaintiff provided elaborate details of Clarke’s alleged defamatory conduct, which resulted in 27 separate claims, seeking damages in the sum of R10 million. [3] Prior to issuing Clarke’s summons, Dlamini and Cullinan participated in a radio interview on 7 April 2016, which was posted on the station’s website. Second plaintiff was also a participant in the said interview. During the interview both Dlamini and Cullinan expressed criticism against the plaintiffs’ mining activities, related certain facts, and expressed certain opinions which second plaintiff alleges are wholly defamatory. Summons was issued on 18 August 2016, one month after the issuing of Clarke’s summons. The summons was amended on 26 March 2020. The mining company seeks damages in the amount of R1.5 million and the CEO seeks further damages of R1.5 million. [4] In the Redell matter, first, second and third defendants presented a lecture series entitled “Mining the Wild and West Coast: ‘Development’ at what cost?” on 25 January 2017, at the Summer School Programme of the University of Cape Town. The Tormin mine was the primary focus of these lectures. During the course of the lecture the defendants made various statements, expressed opinions and criticised the plaintiffs’ mining operations. According to the plaintiffs the defendants made numerous spurious and defamatory statements implying that the mining operations are conducted in an unlawful and deceitful manner that has a devastating effect on the environment. Summons was issued on 2 May 2017, and amended on 17 August 2017. The mining company seeks damages in the amount of R750 000,00 and the 5 director seeks further damages of R500 000,00. The summons was effectively issued approximately three months subsequent to the lecture series. [5] In summary, in each of the actions, the plaintiffs sue the defendants for defamation. Plaintiffs allege that each of the defendants made defamatory statements relating to plaintiffs’ mining operations and activities. The plaintiffs seek damages, alternatively, the publication of apologies. In each of the actions the defendants raised a SLAPP defence. The Defendants Special Pleas: First Special Plea [6] The defendants plead that the plaintiffs’ conduct in bringing each of the actions: 6.1 is an abuse of process; and/or 6.2 amounts to the use of court process to achieve an improper end and to use litigation to cause the defendants’ financial and/or other prejudice in order to silence them; and/or 6.3 violates the right to freedom of expression entrenched in section 162 of 3 the Constitution of the Republic of South Africa (“the Constitution”). 2 16. Freedom of expression (1) Everyone has the right to freedom of expression, which includes – (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research. 3 The Constitution of the Republic of South Africa, 1996. 6 [7] The defendants allege that the mining companies’ actions are brought for the ulterior purpose of: 7.1 discouraging, censoring, intimidating and silencing the defendants in relation to public criticism of the mining companies; and 7.2 intimidating and silencing members of civil society, the public and the media in relation to public criticism of the mining companies. Second Special Plea: [8] The defendants contend that the claims of the mining companies are bad in law because trading corporations, operating for profit, cannot sue for defamation without alleging that: 8.1 the defamatory statements are false; 8.2 the false defamatory statements were wilfully made; and 8.3 the plaintiffs to suffer patrimonial loss arising from the defamatory statements concerned. [9] It is common cause between the parties that in view of the approach adopted by the Supreme Court of appeal in Media 24 Ltd and Others v SA Taxi Securitisation (Pty) Ltd4 the second special plea cannot be sustained and must be upheld. The defendants have conceded that the current law relating to the requirements of a juristic person to sue for defamation, does not support their contentions. This court therefore only need to determine the exception to the first set of special pleas. 4 2011(5) SA 329 (SCA). 7 Submissions made on behalf of Plaintiffs and Defendants [10] Plaintiffs argue that the defendants contend for an abuse of the process, thereby relying entirely and impermissibly on the plaintiff’s motives for bringing these actions. According to the plaintiffs, such reliance on motive, to the exclusion of the merits of the plaintiffs’ claims, is legally unsound. Not only is it incompetent for the defendants to seek to divorce the merits of the plaintiffs’ claims from their motives for bringing the actions, but the plaintiffs motives are irrelevant to the abuse of process debate. Furthermore, the defendants actions amount to a request that the court takes an unprecedented and extraordinary step of shutting its doors on the plaintiffs, thereby denying them their right to access justice in terms of section 345 of the Constitution, without having regard to the merits of plaintiffs’ claims. [11] Plaintiffs contend that South African law limits a defendants’ protection against an abuse of process, to the Vexatious Proceedings Act 3 of 1956 (“VPA”) and the common law. Defendants do not purport to rely on the VPA. However, section 2(1)(b)6 of the VPA, being the only applicable section of the VPA, requires an application for protection